92 Decision Citation: BVA 92-19937
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-54 537 ) DATE
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THE ISSUES
1. Entitlement to service connection for hypertension.
2. Whether new and material evidence has been submitted
which would permit the veteran to reopen his claim of
entitlement to service connection for acquired psychiatric
and stomach disorders.
3. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARINGS ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (BVA)
on appeal from a rating decision entered in August 1989 by
the Huntington, West Virginia, regional office (RO). The
veteran served on active duty from December 1972 to May
1974. The rating decision entered in August 1989 denied
entitlement of the veteran to a permanent and total
disability rating for pension purposes, and a notice of
disagreement relating thereto was received by the RO in
October 1989. A statement of the case was furnished to the
veteran in November 1989. Received by the Department of
Veterans Affairs (VA) in December 1989 was the veteran's
substantive appeal. The case was thereafter received and
docketed at BVA, and by letter dated May 2, 1990, the case
was administratively remanded to the RO so that the veteran
could be afforded the hearing that he had requested. That
hearing was conducted in May 1990 before the hearing officer
of the RO. In July 1990, the hearing officer determined
that the veteran was not entitled to a permanent and total
disability rating for pension purposes. Following
additional rating action in order to effectuate the hearing
officer's decision, the veteran was provided a supplemental
statement of the case in August 1990.
Received by VA later in August 1990 was a notice of
disagreement with respect to the denial by the RO in the
rating decision of August 1989 involving the veteran's claim
for VA compensation for a nervous disorder, stomach
disorder, and hypertension. It is of note that BVA
previously denied entitlement to service connection for
acquired psychiatric and gastrointestinal disorders in a
decision entered in March 1989. Additional supplemental
statements of the case were then provided to the veteran in
September and November 1990. Entered into the record in
February 1991 was a Statement of Accredited Representative
in Appealed Case. The case was again received at BVA in
March 1991 and docketed in April 1991, following which the
veteran's claims folder was referred to his representative,
Paralyzed Veterans of America, Inc., for review. That
organization submitted additional written argument to BVA in
April 1991 and again in October and December 1991. A
hearing before BVA in Washington, D.C., was conducted in
September 1991, at which time testimony in support of the
benefits sought was received. Additional evidence was
thereafter entered into the record by the veteran, and the
case is now ready for appellate review.
Only the issues identified on the title page of the instant
decision are properly before BVA for review at this time.
All other matters, to include the issue of the veteran's
entitlement to service connection for arthritis, are
referred to the RO for appropriate consideration.
REMAND
Review of the entirety of the claims folder indicates that
there are in existence current disabilities of the veteran,
for which no percentage ratings under the VA's Schedule for
Rating Disabilities have been assigned. Included among
those disorders are carpal tunnel syndrome of the right
wrist, extreme photophobia, blepharospasm, and a borderline
mental deficiency. Additionally, updated medical data are
found to be needed for proper evaluation of the severity of
all the veteran's nonservice-connected disabilities.
Recent decisions of the United States Court of Veterans
Appeals, hereinafter the Court, have redefined the approach
to be taken to adjudication of claims for entitlement to a
permanent and total disability rating for pension purposes.
Talley v. Derwinski, 2 Vet.App. 282 (1992), Brown v.
Derwinski, Vet.App. (1992), U.S. Vet.App. No. 90-505
(June 1, 1992). The aforementioned decisions of the Court
discuss, in pertinent part, the need to ascertain all
disabilities affecting employability, accumulate medical
data pertinent to the nature and severity of those
disorders, and rate those entities under the VA's Schedule
for Rating Disabilities. Also, claims for pension are to be
considered under two standards, specifically, the "average
person" and "unemployability" tests outlined in 38 U.S.C.
§ 1502(a)(1) (1992) and 38 C.F.R. §§ 4.15 and 4.17 (1992).
In view of the foregoing, and in light of the VA's duty to
assist the veteran in the development of all facts pertinent
to his claim, as provided by 38 U.S.C. § 5107(a) (1992), we
deem it advisable to obtain additional development of this
matter. Accordingly, we hereby REMAND this case to the RO
for completion of the following actions:
1. The RO should obtain all hospital and
outpatient medical records compiled at VA
facilities since 1990, with respect to
medical assistance received for any
physical or mental disorder. Once
obtained, that data should be made a part
of the veteran's claims folder.
2. The RO should contact the veteran in
writing and ask that he provide a list
describing in detail each and every
physical and mental disorder that affects
his ability to engage in substantially
gainful employment. In addition, he
should be asked to provide the names and
addresses of those private physicians
and/or institutions providing medical
assistance to him since 1990 for any of
his claimed disorders. Upon receipt of
the aforementioned information, the RO
should undertake action to obtain
up-to-date records from those physicians
or institutions for inclusion in the
veteran's claims folder.
3. Through direct contact with the
Social Security Administration, the RO
should obtain all administrative and
medical records compiled by or on behalf
of that agency in connection with any
claim for disability-related benefits
filed by the veteran.
4. Thereafter, the veteran should be
afforded a social and industrial survey
by a VA social worker and such evaluation
should be conducted at the veteran's
residence, in accordance with the
provisions of Section 1.14 of the VA's
Physician's Guide for Disability
Evaluation Examinations. Prior to any
direct contact with the veteran, the
claims folder should be made available to
the examiner for use in the study of this
case. In addition, the VA social worker
should attempt to interview relatives and
neighbors of the veteran in an effort to
obtain data with respect to the veteran's
current symptoms and level of
functioning, as well as his daily
activities. Also, a complete employment
history should be compiled and the
examiner should conduct interviews with
the veteran's most recent employers in
order to determine what job-related
difficulties, if any, were encountered by
the veteran. Once such data are
obtained, a written report should be
compiled for inclusion in the veteran's
claims folder.
5. Thereafter, the veteran should be
afforded a general medical examination in
order to assess the nature and severity
of each and every current disability of
the veteran, to include those alleged
and/or referenced in available medical
data. In addition, the veteran should be
evaluated by a VA psychiatrist for the
purpose of determining the nature and
severity of all mental disorders. Any
indicated tests, to include psychological
studies and intelligence testing, if
deemed warranted, should be undertaken.
The claims folder and a copy of this
REMAND decision should be made available
to each and every examiner prior to his
evaluation for use in the study of this
case.
6. The RO should then, following a
review of all evidence of record,
undertake additional adjudicatory action
with respect to the matter of whether new
and material evidence has been presented
to reopen the veteran's previously denied
claim for VA pension benefits. See
Manio v. Derwinski, 1 Vet.App. 140
(1991), Colvin v. Derwinski, 1 Vet. App.
171 (1991). If the claim is found to
have been reopened, the entirety of the
record, as well as all relevent
provisions of Title 38 of the United
States Code and 38 C.F.R. Parts 3 & 4,
should be considered in connection with
the claim for pension. Each of the
disabilities determined to be present
should be listed and rated under the VA's
Schedule for Rating Disabilities, with
there being specific notation and
discussion of the diagnostic criteria
utilized for rating of each disorder. In
addition, the RO should consider the two
standards by which a permanent and total
disability rating for pension may be
assigned, namely, the "average person"
and "unemployability" tests outlined in
38 U.S.C. § 1502(a)(1) and 38 C.F.R.
§§ 4.15, 4.17. If the claim for pension
benefits is not granted, the veteran and
his representative should be furnished a
supplemental statement of the case with
regard to the additional development and
the subsequent determination, to include
a discussion of each disability, its
rating, and the outcome of each of the
noted tests. They should also be
afforded a reasonable period of time in
which to respond. The records should
then be returned to BVA for further
appellate consideration.
No action by the veteran is required until he receives
further notice.
Further action with respect to the issues of the veteran's
entitlement to service connection for hypertension and
whether new and material evidence has been submitted which
would permit the veteran to reopen his claim of entitlement
to service connection for acquired psychiatric and stomach
disorders is deferred, pending the completion of the
requested development.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
NANCY R. ROBIN B. KANNEE
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.